BILL ANALYSIS                                                                                                                                                                                                    



                                                                AB 1159
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        (  Without Reference to File  )

        CONCURRENCE IN SENATE AMENDMENTS
        AB 1159 (Gonzalez)
        As Amended September 11, 2013
        2/3 vote.  Urgency
         
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        |ASSEMBLY:  |     |(May 9, 2013)   |SENATE: |38-0 |(September 12, |
        |           |     |                |        |     |2013)          |
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                  (vote not relevant)


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        |COMMITTEE VOTE:  |9-0  |(September 12,      |RECOMMENDATION: |concur    |
        |(JUD.)           |     |2013)               |                |          |
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        Original Committee Reference:   ED.  

         SUMMARY  :  Imposes various restrictions and obligations on persons  
        who offer services related to comprehensive immigration reform.  

         The Senate amendments  delete the Assembly version of this bill, and  
        instead:

        1)Provide that it is unlawful for an attorney to demand or accept  
          advance payment of any funds from a person for immigration reform  
          act services before the enactment of an immigration reform act.   
          Any funds received after the effective date of this bill, but,  
          before the enactment of an immigration reform act must be  
          promptly refunded to the client, as specified.

        2)Provide that:

           a)   If an attorney providing immigration reform act services  
             accepted funds prior to the effective date of this bill, and  
             the services provided in connection with payment of those  
             funds were rendered, the attorney shall promptly provide the  
             client with a statement of accounting describing services  
             rendered; and

           b)   Any funds received before the effective date of this bill  
             for which immigration reform act services were not rendered  








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             prior to the effective date, shall be either refunded to the  
             client or shall be deposited in a client trust account.  If  
             the attorney elects to deposit funds in a client trust  
             account, he or she shall provide a specified written notice to  
             the client, in English and the client's native language.

        3)Provide that when a contract for legal services is required to be  
          in writing, as specified, an attorney providing immigration  
          reform act services shall provide a written notice informing the  
          client where he or she may report complaints. 

        4)Require that notice to be attached or incorporated into any  
          written contract for immigration reform act services, and,  
          require the notice to be signed by both the attorney and client  
          if it is attached to a written contract.  This bill would require  
          the notice to be in English and in one of the languages  
          translated by the State Bar, if the contract for immigration  
          reform act services was negotiated in one of those languages.

        5)Require the State Bar to provide the form of the notice, post the  
          form and translations of the form on its Internet Web site, and  
          to translate the form into Spanish, Chinese, Tagalog, Vietnamese,  
          Korean, Armenian, Persian, Japanese, Russian, Hindi, Arabic,  
          French, Punjabi, Portuguese, Mon-Khmer, Hmong, Thai, and  
          Gujarati.  This bill would specify that an attorney who meets  
          specified criteria shall be responsible for adding and  
          translating the name of, toll-free number of, and information on  
          the Internet Web site for, the bar or court in which he or she is  
          admitted to practice law.

        6)Provide that failure to comply with the notice and translation  
          requirement renders the contract voidable at the option of the  
          client, and the attorney shall, upon the contract being voided,  
          be entitled to collect a reasonable fee.

        7)Make the above notice and translation provision operative when  
          the State Bar posts on its Internet Web site the required form  
          and translations, and, require the State Bar to post the form and  
          translations as soon as practicable but no later than 45 days  
          after the effective date of the bill.

        8)Define "immigration reform act" as any pending or future act of  
          Congress that is enacted after the effective date of this section  
          but before January 1, 2017, including but not limited to the  
          "Border Security, Economic Opportunity, and Immigration  








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          Modernization Act" (S. 744, 2013), as specified.  This bill would  
          require the State Bar to announce and post on its Internet Web  
          site when an immigration reform act has been enacted.

        9)Define immigration reform act services as services offered in  
          connection with an immigration reform act that are necessary in  
          the preparation of an application and other related initial  
          processes in order for an undocumented immigrant, as specified,  
          to attain lawful status under the immigration reform act.

        10)Provide that it is a violation of the existing prohibition on  
          non-attorneys advertising or holding themselves out as entitled  
          to practice law for any person who is not an attorney to  
          literally translate from English into another language, in any  
          document, any words or titles, including "notary public,"  
          "notary," "licensed," "attorney," or "lawyer" that imply the  
          person is an attorney, as specified.  This bill would provide  
          that a person who violates the translation prohibition is liable  
          for a civil penalty not to exceed $1,000, as specified.

        11)Provide that, in a civil action brought by the State Bar, the  
          civil penalty collected shall be paid to the State Bar, as  
          specified and require the Board of Trustees of the State Bar to  
          annually report any collection and expenditure of funds for the  
          preceding calendar year to the Assembly and Senate Committees on  
          Judiciary, as specified.

        12)With respect to immigration consultants:

           a)   Increases the amount of the bond to $100,000, effective  
             July 1, 2014;

           b)   Requires each service to be performed to be itemized with  
             an explanation of the purpose and process of the service, and  
             make corresponding changes;

           c)   Revises the existing exemptions for non-profit tax exempt  
             corporations who help client complete application forms by  
             clarifying that only a nominal fee may be charged;
           d)   Requires an immigration consultant who provides immigration  
             reform act services to establish and deposit into a client  
             trust account any funds received from a client prior to  
             performing those services;

           e)   Allows an immigration consultant providing immigration  








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             reform act services for the client to withdraw funds received  
             from that client:  i) after completing one or more of the  
             itemized services, as specified; or ii) after completing one  
             or more of the documents listed, as specified;

           f)   Prohibits an immigration consultant from demanding or  
             accepting advance payment of any funds from a person for  
             immigration reform act services before the enactment of an  
             immigration reform act; 

           g)   Provides that funds received after the effective date of  
             this bill but before enactment of an immigration reform act  
             must be refunded to the client;

           h)   Provides that for funds received before the effective date  
             of the bill: i) the consultant must provide the client with an  
             accounting for services that were rendered; and ii) any funds  
             received for which services have not yet been rendered must be  
             refunded or deposited into a client trust account, as  
             specified; 

           i)   States that a person who violates the above restrictions on  
             advance fees shall be subject to a civil penalty not to exceed  
             $1,000, as specified, and require a court to grant a  
             prevailing plaintiff reasonable attorney's fees and costs; and

           j)   Expressly prohibits the literal translation of the phrase  
             "notary public" into Spanish as "notario public" or "notario."

        13)State that a violation of the existing prohibition on  
          translating terms that imply the person is an attorney is a  
          violation of the State Bar Act's prohibition on non-attorney's  
          holding themselves out to be authorized to practice law.  In  
          addition to the remedies and penalties under the Immigration  
          Consultants Act (ICA), this bill provides that a person who  
          violates the translation prohibition would be subject to a civil  
          penalty of up to $1,000 per day for each violation, as specified.

         FISCAL EFFECT  :  According to the Senate Appropriations Committee:

        1)Minor costs in fiscal year (FY) 2013-14 of less than $20,000  
          (Special Fund*) to the Secretary of State (SOS) for form and Web  
          site changes, noticing, and postage.  Additional costs in FY  
          2014-15 of approximately $35,000 (Special Fund*) to accommodate  
          the increased workload associated with bond processing and cease  








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          and desist notices and orders in response to the surety bond  
          increase for immigration consultants. 

        2)Minor, absorbable one-time costs to the Department of Consumer  
          Affairs (DCA) to revise regulations related to written contract  
          requirements for immigration consultants.

        3)One-time costs to the State Bar to create a template contract  
          form and necessary language translations.  All costs to be offset  
          by existing fee revenue.

        4)Non-reimbursable local costs for enforcement offset to a degree  
          by fine revenue for violations of various prohibitions specified  
          in the bill. 

        5)Potential minor revenue increases (General Fund) for civil  
          penalty collections to the extent additional civil actions are  
          brought by the Attorney General.

        *Business Fees Fund

         COMMENTS  :  In support of the bill, the author states:

             AB 1159 is an important consumer protection measure that  
             will immediately assist in helping to protect the  
             vulnerable community that will be seeking assistance  
             under comprehensive immigration reform.

             Immigration fraud has already begun.  A few bad actors  
             are already making guarantees they cannot fulfill, and  
             are already taking fees for services they cannot possibly  
             provide until the federal government has acted.

             If immigration reform passes, it is estimated that 11  
             million nationwide will be impacted.  Of that 11 million,  
             approximately 2.55 million live in California.  No one  
             knows how many of the 2.55 million will be victimized by  
             fraud, but we do know the risk of fraud is very high  
             since the fraud is already occurring. . .  AB 1159 is  
             designed to significantly help reduce fraud and to  
             provide appropriate enforcement tools to recover against  
             those individuals who do engage in fraudulent behavior.  
                  
             AB 1159 is a reasonable approach to ensure consumer  
             protection for immigrants.  By putting in place these  








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             safeguards now, the bill will help prevent the fraud at  
             the front end, avoiding more significant repercussions  
             down the road.

         
        Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334 


        FN:  
        0002868